Common use of Owner's Rights upon an Event of Default Clause in Contracts

Owner's Rights upon an Event of Default. Upon the occurrence and continuation of any Event of Default Owner may do any one or more of the following: (a) Terminate this Agreement and/or Owner's obligations to make any further advances hereunder; (b) To the extent permitted by applicable law, take immediate possession of any Unit Premises, Unit Improvements, Unit FF&E, and Unit with respect to which Owner has made an Initial Advance and remove any equipment or property of Owner in the possession of Agent, wherever situated, and for such purpose, enter upon any such Unit Premises, Unit Improvements or Unit without liability to Agent for so doing; (c) Whether or not any action has been taken under (a) above, sell any Unit Premises, Unit Improvements, Unit FF&E, or Unit (with or without the concurrence or request of Agent) at public or private sale (judicially or non-judicially), pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by Agent hereunder; provided that the disposition of any Unit Premises, Unit Improvements, Unit FF&E, or Unit shall take place in a commercially reasonable manner; (d) Hold, use, occupy, operate, remove, lease, sublease or keep idle any Unit Premises, Unit Improvements, Unit FF&E, or Unit as Owner in its sole discretion may determine, without any duty to account to Agent with respect to any such action or inaction or for any proceeds thereof, except as may be expressly set forth herein; and (e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Owner from time to time at Owner's election, and nothing herein contained shall be deemed to require Owner to await the date whereon this THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Agreement or the term hereof would have expired by limitation had there been no such default by Agent or no such termination or cancellation. The receipt of any payments under this Agreement by Owner with knowledge of any breach of this Agreement by Agent or of any default by Agent in the performance of any of the terms, covenants or conditions of this Agreement, shall not be deemed to be a waiver of any provision of this Agreement. No receipt of moneys by Owner from Agent after the termination or cancellation hereof in any lawful manner shall reinstate or continue this Agreement, or operate as a waiver of the right of Owner to recover possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit by proper suit, action, proceedings or remedy or operate as a waiver of the right to receive any and all amounts owing by Agent to or on behalf of Owner hereunder; it being agreed that, after the service of notice to terminate or cancel this Agreement, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit, Owner may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Unit Premises, Unit Improvements, Unit FF&E, or Unit, or at the election of Owner, on account of Agent's liability hereunder.

Owner's Rights upon an Event of Default. Upon the occurrence and continuation of any Event of Default Owner may in its discretion declare this Agreement to be in default and do any one or more of the following: (a) Terminate this Agreement and/or Owner's obligations to make any further advances hereunderhereunder by written notice to Agent; (b) To the extent permitted by applicable law, take Take immediate possession of any Unit Premises, Unit Improvements, Unit FF&E, and Unit with respect to which Owner has made an Initial Advance and remove any equipment or property of Owner in the possession of Agent, wherever situated, and for such purpose, enter upon any such Unit Premises, Unit Improvements or Unit without liability to Agent for so doing; (c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit (with or without the -43- 44 THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY concurrence or request of Agent) at public or private sale (judicially or non-judicially), nonjudicially pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by Agent hereunder; , provided that the disposition of any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit shall take place in a commercially reasonable manner; (d) Hold, use, occupy, operate, repair, remove, lease, sublease or keep idle any Unit Premises, Unit Improvements, Unit FF&E, or Unit as Owner in its sole discretion may determine, without any duty to account to Agent with respect to any such action or inaction or for any proceeds thereof, except as may be expressly set forth herein; and (e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Owner from time to time at Owner's election, and nothing herein contained shall be deemed to require Owner to await the date whereon this THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Agreement or the term hereof would have expired by limitation had there been no such default by Agent or no such termination or cancellation. The receipt of any payments under this Agreement by Owner with knowledge of any breach of this Agreement by Agent or of any default by Agent in the performance of any of the terms, covenants or conditions of this Agreement, shall not be deemed to be a waiver of any provision of this Agreement. No receipt of moneys by Owner from Agent after the termination or cancellation hereof in any lawful manner shall reinstate or continue this Agreement, or operate as a waiver of the right of Owner to recover possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit by proper suit, action, proceedings or remedy or operate as a waiver of the right to receive any and all amounts owing by Agent to or on behalf of Owner hereunder; it being agreed that, after the service of notice to terminate or cancel this Agreement, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit, Owner may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for of Agent's liability hereunder. After any Event of Default, Agent shall be liable for, and Owner may recover from Agent, (i) in the usecase of an Event of Default pursuant to paragraph (l) of subsection 11.1 hereof, operation and occupation an amount equal to 89.9% of the sum of all of Owner's obligations, costs and expenses incurred in connection with its obligations under this Agreement and for which Owner may demand payment or reimbursement pursuant to subsection 9.5 hereof, (ii) in the case of any other Event of Default pursuant to subsection 11.1 hereof or in the event Agent converts any Unit Premises, Unit Improvements, Unit FF&EFF&E or Unit after an Event of Default, or Unitin the event such Unit Premises, Unit Improvements, Unit FF&E or at Units is lost or destroyed by Agent, all of -44- 45 THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Owner's obligations, costs and expenses incurred in connection with its obligations under this Agreement and for which Owner may demand payment or reimbursement pursuant to subsection 9.5 hereof, (iii) all amounts payable pursuant to Section 12 hereof and (iv) all of the election losses, damages (provided, such losses and damages shall not include (a) the Unit Acquisition Cost or any portion thereof and (b) any losses or damages arising during Agent's construction of any Unit Improvements, Unit FF&E or Unit prior to such Event of Default), costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by Owner by reason of such Event of Default and the exercise of Owner's remedies with respect thereto, on account including, in the event of Agent's liability hereundera sale by Owner of any Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant to this subsection 11.2, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iv) above are hereinafter sometimes referred to as the "ACCRUED DEFAULT OBLIGATIONS".

Owner's Rights upon an Event of Default. (a) Upon the occurrence and continuation of any Event of Default Owner may may, in addition to exercising any other rights and remedies available to it under applicable law, do any one or more of the following:following (if, within fifteen (15) Business Days of receipt by Agent of an Event of Default Notice (as defined in Section 19 hereof), Agent has not made a request to purchase all Unit Premises, Unit Improvements, Unit FF&E or Units under Section 19 or, if Agent has so made such a request but has not consummated within thirty (30) Business Days of receipt of the Event of Default Notice such purchase in full compliance with Section 19): (ai) Terminate this Agreement and/or Owner's obligations to make any further advances hereunderhereunder by written notice to Agent, subject to the maximum amount Owner shall be entitled to recover from Agent, as described in paragraph (f) of this subsection 11.2; (bii) To the extent permitted by applicable law, take Take immediate possession of any Unit Premises, Unit Improvements, Unit FF&E, FF&E and Unit with respect to which Owner has made an Initial Advance and remove any equipment or property of Owner in the possession of Agent, wherever situated, and for such purpose, enter upon any such Unit Premises, Unit Improvements or Unit without liability to Agent for so doing; provided that the taking of possession of any Unit Premises, Unit Improvements, Unit FF&E or Unit shall take place in a commercially reasonable manner; (ciii) Whether or not any action has been taken under (a) above, sell any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit (free of or subject 39 41 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY to the rights of Agent or any other Person under this Agreement and with or without the concurrence or request of Agent) at public or private sale (judicially or non-judicially), pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by Agent hereunder; provided that the disposition of any Unit Premises, Unit Improvements, Unit FF&E, or Unit shall take place in a commercially reasonable manner; (div) Hold, use, occupy, operate, remove, lease, sublease or keep idle any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit as Owner in its sole discretion may determine, without any duty to account to Agent with respect to any such action or inaction or for any proceeds thereofinaction, except as may that Owner agrees that any profit it derives from the occupation or use of any Unit Premises, Unit Improvements, Unit FF&E or Unit while exercising its rights under this subsection 11.2 will be expressly set forth hereinapplied to reduce the Accrued Default Obligations; and (ev) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. . (b) Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Owner from time to time at Owner's election, and nothing herein contained shall be deemed to require Owner to await the date whereon this THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Agreement or the term hereof would have expired by limitation had there been no such default by Agent or no such termination or cancellation. . (c) The receipt of any payments under this Agreement by Owner with knowledge of any breach of this Agreement by Agent or of any default by Agent in the performance of any of the terms, covenants or conditions of this Agreement, shall not be deemed to be a waiver of any provision of this Agreement. . (d) No receipt of moneys by Owner from Agent after the termination or cancellation hereof in any lawful manner shall reinstate or continue this Agreement, or operate as a waiver of the right of Owner to recover possession of any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit by proper suit, action, proceedings or remedy or operate as a waiver of the right to receive any and all amounts owing by Agent to or on behalf of Owner hereunder; it being agreed that, after the service of notice to terminate or cancel this Agreement, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit, Owner may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit, or at the election of Owner, on account of 40 42 THIS AMENDED AND RESTATED AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Agent's liability hereunderhereunder and will be applied to reduce the Accrued Default Obligations. (e) Agent hereby expressly confirms that, in any event, including after any Event of Default, and notwithstanding any termination of this Agreement or reentry or repossession by Owner, Agent shall be liable for, and Owner may recover from Agent, (i) all of Owner's obligations, costs and expenses incurred in good faith in connection with its obligations under this Agreement and for which Owner may demand reimbursement pursuant to subsection 9.5 hereof, (ii) all amounts payable hereunder or under any other Operative Document and (iii) all losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by Owner by reason of such Event of Default and the exercise of Owner's remedies with respect thereto, including, in the event of a sale by Owner of any Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant to this subsection 11.2, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iii) above are hereinafter sometimes referred to as the "Accrued Default Obligations". Accrued Default Obligations shall not include any damages for loss of profits arising from the prospective use, operation and occupancy by parties other than Agent of any Unit Premises, Unit Improvements, Unit FF&E or Unit or the anticipated receipt of income therefrom subsequent to Agent's possession of such Unit Premises, Unit Improvements, Unit FF&E or Unit. (f) After an Event of Default, Owner may sell its interest in any Unit Premises, Unit Improvements, Unit FF&E and Unit in any commercially reasonable manner upon any terms that Owner deems satisfactory, free of any rights of Agent or any Person claiming through or under Agent. In the event of any such sale, or in the event Owner elects not to sell any Unit Premises, Unit Improvements, Unit FF&E or Unit, in addition to the Accrued Default Obligations, Owner shall be entitled to recover from Agent, as liquidated damages, and not as a penalty, an amount equal to eighty-five percent (85%) of the Unit Acquisition Cost of any Unit Premises, Unit Improvements, Unit FF&E and Units under this Agreement. Proceeds of any such sale received by Owner, or, in the event Owner elects not to sell, proceeds at any time thereafter received by Owner from any sale, occupation, operation, use or lease of any Unit Premises, Unit Improvements, Unit FF&E or Unit (net of all reasonable costs and expenses incurred by Owner in connection with any sale, occupation, operation, use or lease of any Unit Premises, Unit Improvements, Unit FF&E or Unit) in excess of fifteen percent (15%) of the Unit Acquisition Cost of such Unit Premises, Unit Improvements, Unit FF&E or Unit, shall be credited against the Accrued Default Obligations Agent is required to pay under this subsection 11.2. If such excess proceeds exceed the Accrued Default Obligations, or, if Agent has paid all amounts required to be paid under this subsection 11.2, such excess shall be paid by Owner to Agent. If Agent converts any such Unit Premises, Unit Improvements, Unit FF&E or Unit after an Event of Default, or if such Unit Premises, Unit Improvements, Unit FF&E or Unit is lost or destroyed, in addition to the Accrued Default Obligations,

Owner's Rights upon an Event of Default. Upon the occurrence and --------------------------------------- continuation of any Event of Default Owner may do any one or more of the following: (a) Terminate this Agreement and/or Owner's obligations to make any further advances hereunder; (b) To the extent permitted by applicable law, take Take immediate possession of any Unit Premises, Unit Improvements, Unit FF&E, and Unit with respect to which Owner has made an Initial Advance and remove any equipment or property of Owner in the possession of Agent, wherever situated, and for such purpose, enter upon any such Unit Premises, Unit Improvements or Unit without liability to Agent for so doing; (c) Whether or not any action has been taken under paragraph (a) or (b) above, sell any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit (with or without the concurrence or request of Agent) at public or private sale (judicially or non-judicially), ) pursuant to such notices and procedures as may be required by law, to the extent such requirements are not effectively waived by Agent hereunder; , provided that the disposition of any Unit Premises, Unit Improvements, Unit FF&E, FF&E or Unit shall take place in a commercially reasonable manner; (d) Hold, use, occupy, operate, remove, lease, sublease or keep idle any Unit Premises, Unit Improvements, Unit FF&E, or Unit as Owner in its sole discretion may determine, without any duty to account to Agent with respect to any such action or THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY inaction or for any proceeds thereof, except as may be expressly set forth herein; and (e) Exercise any other right or remedy which may be available under applicable law and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce the terms hereof or to recover damages for the breach hereof. Suit or suits for the recovery of any default in the payment of any sum due hereunder or for damages may be brought by Owner from time to time at Owner's election, and nothing herein contained shall be deemed to require Owner to await the date whereon this THIS AGREEMENT FOR LEASE IS CONFIDENTIAL AND PROPRIETARY Agreement or the term hereof would have expired by limitation had there been no such default by Agent or no such termination or cancellation. The receipt of any payments under this Agreement by Owner with knowledge of any breach of this Agreement by Agent or of any default by Agent in the performance of any of the terms, covenants or conditions of this Agreement, shall not be deemed to be a waiver of any provision of this Agreement. No receipt of moneys by Owner from Agent after the termination or cancellation hereof in any lawful manner shall reinstate or continue this Agreement, or operate as a waiver of the right of Owner to recover possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit by proper suit, action, proceedings or remedy or operate as a waiver of the right to receive any and all amounts owing by Agent to or on behalf of Owner hereunder; it being agreed that, after the service of notice to terminate or cancel this Agreement, and the expiration of the time therein specified, if the default has not been cured in the meantime, or after the commencement of suit, action or summary proceedings or of any other remedy, or after a final order, warrant or judgment for the possession of any Unit Premises, Unit Improvements, Unit FF&E, or Unit, Owner may demand, receive and collect any moneys payable hereunder, without in any manner affecting such notice, proceedings, suit, action, order, warrant or judgment; and any and all such moneys so collected shall be deemed to be payments on account for the use, operation and occupation of the Unit Premises, Unit Improvements, Unit FF&E, or Unit, or at the election of Owner, on account of Agent's liability hereunder. After any Event of Default, Agent shall be liable for, and Owner may recover from Agent, (i) all of Owner's obligations, costs and expenses incurred in connection with its obligations under this Agreement and for which Owner may demand reimbursement pursuant to subsection 9.5 hereof, (ii) all amounts payable pursuant to subsection 11.4 and Section 12 hereof and (iii) in addition, all losses, damages (but not consequential damages), costs and expenses (including, without limitation, attorneys' fees and expenses, commissions, filing fees and sales or transfer taxes) sustained by Owner by reason of such Event of Default and the exercise of Owner's remedies with respect thereto, including, in the event of a sale by Owner of any Unit Premises, Unit Improvements, Unit FF&E or Unit pursuant to this subsection 11.2, all costs and expenses associated with such sale. The amounts payable in clauses (i) through (iii) above are hereinafter sometimes referred to as the "Accrued Default Obligations".